Holding

The High Court had no power to modify marks by moderation or to include candidates who did not meet the statutory qualifying marks, and the Selection Committee could not impose a higher aggregate threshold; the final list must be prepared based on the original qualifying marks.

Summary

The case concerned recruitment to the Delhi Judicial Service under the Delhi Judicial Service Rules, 1970. The High Court, after the written examination, added two marks to each candidate’s paper as a "moderation" and prepared a second list of candidates who then qualified for the viva‑voce, despite not meeting the statutory minimum marks. The Selection Committee later prepared a final list that omitted some candidates who had appeared for viva‑voce and included others who had not met the prescribed qualifying marks. The petitioners challenged the High Court’s power to alter marks and the Selection Committee’s power to set an additional aggregate threshold of 600 marks. The Supreme Court held that the Rules, particularly clause 6 of the Appendix, fixed the qualifying marks and could be amended only under Article 234 by the Lt. Governor after consultation with the High Court; therefore the High Court had no authority to add moderation marks, nor could the Selection Committee impose a higher aggregate requirement. The list prepared after moderation was struck down and a fresh list based solely on the original qualifying marks was ordered. The petitions were allowed.

Issues considered

Whether the High Court had the power to add two marks to each paper as moderation in a competitive examination governed by the Delhi Judicial Service Rules.
Whether the High Court could include candidates who had not met the minimum qualifying marks prescribed in the Rules.
Whether the Selection Committee could set an additional minimum aggregate mark of 600 for inclusion in the final list.

Legislation cited

Constitution of Indias. Article 234, s. Article 235, s. Article 309

Subjects

judicial service recruitmentmoderation of marksconstitutional lawArticle 234equalitypublic service appointmentwrit petitionselection committee

Judgment

367

UMESH ceANDRA S1lllKLA J!TC, ETC, A
v.
UNION OF INDIA & ORS,

AUGUST 2, 1985

[E.S. VENKATARAMIAll AND R.B. MISRA, JJ.] B

Constitution of India 1950, Article 234 & Delhi Judicial
Service Rules, Rules 16, 17 and 18

Subordinate Judges - Recruitment of - Service Rules provid-
ing for written examination and viva voce test and prescribing c
miniuaun marks for qualifying - High Court by Full Court decision
adding two marks to marks obtained in each written paper of
Candidate by way of moderation - Selection C()lllmittee fixing
minimum of 60% marks in aggregate after viva voce test - Full
Court and Selection C()lllmittee decisiona - Whether valid and
proper. D

Recruitment to the Delhi Judicial Services was goveroed by
the Delhi Judicial Service Rules 1970. Rule 13 thereof provided
that after the initial recruitment, recruitments shall be made on
the basis of a competitive examination to be held by the High
Court. Rule 14 prescribed the miniDllm qualification for a candi-
date to be eligible to appear at the cmpetitive examination, E
viz. (a) citizen of India, (b) a person practising as an advocate
or qualified to be admitted as an advocate; and (c) not more than
32 years of age. Rule 15 provided that the syllabus for the
examination and the fee payable shall be as detailed in the
Appendix to the Rules. The examination was to consist of five
written papers and a viva voce teat. Cluaee (b) of the AppendU F
dealt with viva voce, and provided that: "Only such candidates
will be called for viva voce who have obtail!ed 50% in each
written paper and 60% in the aggregate ei:cept in the case of
candidates belonging to the Scheduled Castes/Tribes in whoa& case
the qualifying marks will be 40% in each written paper lllld 50% in
the aggregate•. The marks obtained in the viva voce was to be G
added to the marks obtained in the written papers and the candi-
dates, rank depended on the aggregate of both. Rule 16 provided
that after the written teat the High Court was to arrange the
names of candidates in order of merit and the names to be sent to
the Selection Comnittee. Rules 17 and 18 provided that tbe
Selection Conmittee shall call for the viva voce test only aueh B
368 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A candidates who qualified in the written test, and af cer the viva
voce teat the Selection Committee was to prepare a list of candi-
dates in order of merit and to forward the same to the Adminis-
trator ..

The Registrar of the Delhi High Court through a notification
B called for application from eligible persons for filing the posts
in the Delhi Judicial Service. A large number of candidates who
were eligible applied in response thereto. The examination in
the written papers were held and after the answer books were
valued, the names of 27 candidates who were eligible for the viva
voce test under the Rules were published on the Notice Board.
These candidates were admitted to the viva voce test by the
c Selection Committee. Before the final list of the candidates was
published by the Selection Committee aa required by Rule 18, the
petitioners in the Writ Petition came tu know that the names of
certain candidates whose names had not been included in the above
list of 27 qualified candidates were included in the final list
by the Selection Committee and that the names of certain candi-
dates who had been interviewed by the Selection Comn1 ttee had
D been omitted from the said final list.

The' 'petitioners in that writ petition question the validity
of the procedure adopted by the High Court and the Selection
ec-ittee in the preparation of the final list of successful
candidates and contended that it was not open to the High Court
E to include in the list prepared under Rule 16 names of the candi-
dates who had not secured the mininum marks prescribed for eligi-
bility to appear in the viva voce test and that it was not open
to the Selection Committee or the High Court to omit the names of
certain candidates who had appeared at the viva voce test from
the final list.
F
The writ petitions were contested and opposed by the High
Court, by contending that the petitioners had no right to
maintain the writ petitions and that the High Court had treated
all candidates equally. It was further contended that the results
of the written examination were placed before the Full court for
G approval, and that the Full Court approved the initial list of 27
candidates who qualified at the written test. However, aa a few
candidates who had secured very high marks were kept out of the
zone of consideration for final selection by reason of having
secured one or two marks below the aggregate marks prescribed,
moderation of two marks in each paper to every candidate was
H done, and on the basis of this moderation and as a result of
U.C.S!IlJKLA v. u.p.I. 369

revaluation of one answer book of one candidate, a second list A
was prepared showing the names of 8 candidates who also qualified
for the viva voce test•

On the question: (1) whether the High Court had the power to
add two marks to the marks obtaining in each. paper by way of
moderation, and (2) whether the High Court had power to eliminate B
the names of the candidates who have secured less than the 60%
marks in the aggregate after the viva voce test.

Allowing the writ petitions,

lll!Ul: l.(a) The list prepared by the High Court after C,
adding the moderation marks is liable to be struck down. [382 DI

(b) Rule 16 of the Rules merely laid down that after the
written examination the High Court shall arrange the names in
order of merit of candidates who had obtained the qualifying
marks and these names shall be s~nt to the ·selection Committee. D
The High Court had therefore no power to include the names of
candidates who had not initially secured the minimum qualifying
marks in the written papers by resorting to the devise of modera-
tion, particularly when there was no complaint either about the
question papers or about the mode of valuation. Exercise of
auch power of .moderation is likely to create a feeling of
distrust in the process of public appointments which is intended E
to be fair and impartial. It may also result in the violation of
the principle of equality and may lead to arbitratriness, [ 382
B-c]

(c) The mandatory character of clause (6) in the Appendix
to the Rules provides that only such candidates will be called F
for viva voce who·have obtained 50% marks in the written paper
and 60% in the aggregate except in the case of Candidates belong-
ing to the Scheduled Castes/Tribes in whose case the qualifying
marks will be 40% in each written paper and 50% in the aggregate.
Addition of any mars by way of moderation to the marks obtained
in any written paper or to the aggregate of the marks, in order G
to make a candidate eligible to appear in the viva voce test
would indirectly amount to an amendment of clause ( 6) of the
Appendix. [381 B-c)

2.(a) There is no power reserved Under Rule 18 of the Rules
'for the High Court to fix its own minimum marks in order to H
include candidates in the final list. [382 G)
370 SUPREME COURT REPORTS [1985] SUPP;2 s.c.R.

A (b) No fresh disqualification or bar may be created by the
High Court or the Selection Committee merely on the basis of the
marks obtained at the examination, because clause ( 6) of the
Appendix itself has laid down the minimmn marks which a candidate
should obtain in the written papers or in the aggregate in order
to qualify himself to become member of~ the Judicial Service. The
B prescription of the minimmn of 600 marks in the aggregate by the
Selection Committee as an additional requirement which the candi-
date has to satisfy 811¥lt1Ilts to an amendment of whst is prescribed
by clause ( 6) of the Appendix. [383 JH:]

In the instant case, the decision that a candidate should
have secured minillPJ!U of 600 marks in order to be included in the
c final select list is not even taken by the High Court but by the
Selection Committee. [383 DJ

(c) The exclu~ion of the names of certain candidates who
have not secured 600 marks in the aggregate from the list prepar-
ed under Rule 18 of the Rules is not legal. The list is quaahed
and it is directed that a fresh list shall be prepared in order
n of merit on the basis of the aggregate of the marks obtained by
the candidates at the written examination and at the viva voce
test without taking into consideration the moderation marks added
by the High Court, and without reference to the decision of the
Selection Committee that candidates who had obtained less than
600 marks in the aggregate should not be included in that list.
E
The appointing authority is directed to treat the final list so
preared as the list forwarded to it under Rule 18 of the Rules.
[382 F-383 BJ

ORIGINAL JURISDICTION Writ Petition Nos. 3805 and 3850 of
1985 etc.
F
y,s. Chitale, p,p; Rao, M.K. RamaJmJrthi, R.K. Garg, F.s.
Nariman, K. Parasaran, Attorney General, S.M. Ashri, Petitioner-
in-person, Rakesh K. Khanna, Jaspal Singh, S.K. Verma, Miss Asha
Rani Jain, P;H, Parekh, S.K. Verma, C.M. Nayar, K. Swamy, S.S.
Khanduja, Yashpal Dhingra, Miss Rani Jetbmalani, A.K. Ganguli,
G
M.A. Krishnamoorthy, R.N. Poddar, S.K. Bisaria, Jank Raj Joshi,
Kailash Vasdev, Mrs. Vined Arya, K. Swami, V.K. Maheshwari, U.R.
Lali t and Mrs. Indira Sawhney for the appearing parties•

The Judgment cf the Court was delivered by

VENKATARAMIAH, J, In these petitions filed under Article 32
H
of the Constitution the petitioners have challenged the validity
of the proceedings relating to the competitive examination held
u.c.SHUKLA v. u.o.I. [VENKATARAMIAH, J • l 371

by the High Court of Delhi' for the purpose of recruiting candi- A
dates for filling the posts in the Delhi Judicial Service in the
year 1984 and of the final list of selected candidates at that
examination. The petitioner in Transfer Case No. 61 of 1985,
which was also heard along with the above petitions, had filed
earlier a writ petition under Article 226 of the Constitution
before the High Court of Delhi for the very same relief• That B
writ petition was withdrawn by an order made under Article 139A
of the Constitution for being disposed of along with the writ
petitions filed in this court.

The petitioners in the above petitions were applicants for
the posts ·Of Subordinate Judges in the Delhi Judicial Service. C
Recruitment to the Delhi Judicial Service is governed by the
Delhi Judicial Service Rules, 1970 (hereinafter referred to as
'the Rules') made by the Lt. Governor of Delhi in exercise of the
powers conferred by the proviso to Article 309 of the Constitu-
tion read with Article 234 of the Constitution, in consultation
with the High Court of Delhi. The initial recruitment to the D
Delhi Judicial Service was made in accordance with Part III of
the Rules. 'Initial recruitment' means the first recruitment and
appointment made to the Delhi Judicial Service after the
conmencement of foe Rules. Any recruitment to the Delhi Judicial
Service after the initial recruitment is required to be made in
accordance with the rules contained in Part IV of the Rules. We
are concerned in these cases mainly with Rules 13 to 18 of the E
Rules and the Appendix attached thereto. Rule 13 of the Rules
·provides that recruitment after the initial recruitment, shall be
made on the basis of a competitive examination to be held by the
High Court at such intervals as the Administrator may in consult-
ation with the High Court determine. The Administrator is not
other than the Lt. Governor of Delhi. The dates on which and the F
place at which the examination is to be held are required to be
fixed by the Administrator. Rule 14 prescribes' the minillD.lm
qualifications for a candidate which he should satisfy in order
to be eligible to appear at the competitive examination. A
candidate is eligible to appear at the examination if he is (a) a
citizen of India; (b) a person practising as an advocate in India G
or a person qualified to be admitted as an advocate under the
Advocates Act, 1961; and (c) not more than 32 years of age on the
Ist day of January following the date of commencement of the
examination. Rule 15 of the Rules provides that the syllabus for
the examination and the fees payable shall be as detailed in the
Appendix attached to the Rules. The examination includes the H
following subjects and each subject carries the number of marks
shown against it:
312 SUPl®IE COURT REPORTS [1985] SUPP.2 s.c.R.

(1) Essay and General Knowledge 150
A
(2) Language 100
(3) Law Paper (I) and Civil Law 200
(4) Law Paper (II) Civil Law 200
(5) Paper(III) Criminal Law 200
(6) Viva Voce 150

The first five papers are called written papers. In clauses
(1) to (5} of the Appendix the topics or subjects of each of the
above written papers are set-out. Clause (6) of the Appendix
which deals with Viva Vore reads as under:-

''(6) Viva Voce:- Only such candidates will be called
for Viva Voce who have obtained 50% in each written
c paper and 60 pet cent in the aggregate except in the
case of candidates belonging to the Scheduled Castes/
Tribes, in whose case the qualifying marks will be 40%
. in each written paper and 50% in the aggregate."

The marks obtained in the Viva Voce have to be added to the
marks obtained in the written papers and the candidate's rank
D
depends on the aggregate of both. Rule 16 of the Rules provides
that after the written test, the High Court shall arrange the
Iiames of the candidates in order of merit and these names shall
be sent to the Selection Coilllllittee• The constitution of the
Selection Coomittee is described by rule 5 of the Rules. It
provides that for purposes of recruitment to the Delhi Judicial
E
Service there shall be a Selection Coilllllittee consisting of the
following:'-

"(l) Chief Justice or a Judge of the High Court depu-
ted by him.
F (2) Two Judges of the High Court nominated by the
Chief Justice.

(3) Chief Secretary, Delhi Administration, Delhi·

(4) A Secretary of the Delhi Administration nominated
G by the Administrator."

The Registrar of the High Court is the ex officio Secretary
to the Coomittee. The Selection Coilllllittee is required to call
for Viva Voce test only such candidates who have qualified at the
li
U,C.SIRJKLA v. U.Q.I. [VENKATARAMlA!l, J.] 373

written test as provided in the Appendix. The duties and func- A
tions of the Selection Committee are set out in rules 17 and 18
of the Rules. They read:

"17. The Selection Collllrl.ttee shall call for vivs voce
test only such candidates, who have qualified at the
written test as provided in the appendix. B

18. The Selection Committee shall prepare a list of
candidates in order of merit. Such list will be
forwarded to the Administrator for filling the. vacan-
cies then existing or any vacancy that may occur
within a period of one year of the preparation of the c
list."

The for~going is in brief the sulilmary of the rules governing
the recruitment of persons to the Delhi Judicial Service after
the initial recruitment. On July 5, 1984 a notification was
published in the local newspapers by the Registrar of Delhi High D
Court calling for applications from eligible persons for filling
the posts in the Delhi Judicial Service. A large number of
candidates who were eligible under the Rules applied in response
to the said notification. The examination in the written papers,
i.e., Essay and General Knowledge, Language, Law Paper (I) and
Civil i.aw, Law Paper (II) Civil Law and Paper (Ill) Criminal law
was held in October, 1984. After the answer books at the written E
examination were valued, the Iiames of 27 candidates, who were
eligible for the vivs voce test under the Rules, i.e., the candi-
·dates who had obtained not less .than 50 · per cent marks in each
written . paper and not less than 60 per cent in t)le aggregate
amongst candidates not belonging to the Scheduled Castes/Tribes
and the candidates belonging to Scheduled Castes/Tribes who had F
obtained not less than 4() per cent marks in each written paper
and not less than 50% in the aggregate, were published on the
Notice Board of the · Delhi High Court in the early part of
January, 1985. The names of the said candidates were arranged in
accordance with their Roll Numbers and not in the order of merit.
The following is the list of 27 candidates:- G

Sl. Roll Name
No. No.

1. 20 Sh, Naresh Kumar Kaushik
2. 30 Miss Sangita Dhingra H
3. 35 Sh. Pradeep Chaddha
4. 36 Sh. Narender Kumar
374 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

5. 57 Miss Ravinder Kaur
A 6. 58 Sh. Kunda Singh Mohl
7. 61 Sh. Pad.am Kant Saxena
8. 103 Sh. Teeka Ram
9. 112 Miss Anu Prem Shanker Kapoor
10. 170 Sh. Vinod Kumar Maheshwari
11. 180 Sh. Brijesh Sethi
12. 220 Miss Asha Menon
13. 258 Sh. Rake sh Garg
14. 287 Sh. A.K. Chaturvedi
15. 311 Sh. Sukhdev Singh
16. 342 Sh. Sudip Ahluwalia
17. 404 Sh. Pawan Kumar
18. 416 Sh. Dimpy Kumar Malhotra
c 19. 442 Sh. R. Kiran Nath
20. 526 Sh. Dilbagh Singh Punia
21. 715 Sh. Sstish Kumar Minocha
22. 962 Sh. Jaipal Singh Malik
23. 996 Sh. Suraj Bhan
24. 1081 Sh. Narindar Pal Kaushik
. 25. 1510 Miss Rekha Rani
D 26. 1566 Sh. Ksmlesh Kumar
27. 1883 Sh. Ksmlesh Chander Agarwal

The~e candidates were admitted to the Viva Voce test by the
Selection Connnittee. Before. the final list of candidates was
published by the Selection Comnittee, as required by rule 18 of
the Rules, the petitioners came to know that names of certain
candidates who names had not been included in the above list of
27 qualified candidates had been included in the final list by
the Selection Commitee and that the names of certain candidates
who had been interviewed by the Selection Conmittee had been
omitted from the eaid final list· Inmediately thereafter the
F petitioners filed those petitions questioning the validity of the
procedure adopted by the High Court and the Selection Conmittee
in the preparation of the final list .of successful candidates.
It is not necessary to refer to all the allegations made in the
petitions for the purpose of deciding these cases. We propose
to deal wi.th only two contentions raised by the petitioners,
namely:-

{1) wnether it was vpen to the lligh Court to include
in the list prepd.red ur..cter rule 16 o.i the Ruleo 1w.mes
of the candidates who had not secured the minimum
marks pcescr.:Lbed in the Appenaix of tne l\ules f.or
li
being eligible to appear at the Viva Voce test; and
u.C.SHUKLA v. u.o.r. [VENKATARAMIAll, J.j 375

(2) l<lhether it was open to the Selection Committee or A
the High Court to omit the names of certain candidates
who had appeared at the Viva Voce examintion from the
final list. ·

In order to appreciate the above contentions, it is
necessary to set out what the Deputy Registrar of the High Court B
of Delhi has stated in his counter-affidavit filed on behalf of
the High court in answer to the allegations made by the peti-
tioners. In the counter-affidavit dated 12.4.1985 filed in Writ
Petition No. 3805 of 1985, the Deputy Registrar has stated as
under:-
c
"II (a) .....•.........•.....•.•.•.... • • • • • · • • • · • ·: • • •

( b) 'Dle petitioner in any evezlt bas no right to
mefp~a1n the present petitioll.

I state that on the basis of the written competitive D
examination held in' October, 1984 for recruitment to
the Delhi Judicial Service, the High Court of Delhi
had prepared a list of 27 candidates who qualified at
the written teat. S~bsequently> by reason of a Full
Court decision of the High Court, the marks obtained
by the candidates at the written test were moderated
by granting two marks to each of the candidates in E
each paper for the reaeons detailed herein below.

On the basis of this moderation. and as a result of
re-valuation of papers of one candidate (details of
which are given below) a second Us t was prepared
showing the names of 8- candidates who also qualified
F
fOr the Viva Voce test .........•...........•.•....

(c) ll1gb Court baa treated each candidate equally.

I state that aa a general practice, after the written
examinatiorui are held for recruitment to the Delhi
G
Judicial Service, the results of the same are placed
before the Full Court for their Lordships approval.
The results of the written examination held in 1984
for recruitment to the Delhi Judicial Service were
also placed before the Full Court. The Full Court
approved the initial list of 27 candidates who quali- H
fied at the said written test. However, the lion'ble
376 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

Judges of the High Court having appreciated that a few
A
candidates who had otherwise scored very high marks
would have to be kept out of the zone of consideration
for final selection by reason of their having secured
· one or two marks below the aggregate or the qualifying
marks prescribed for the particular paper, decided
that "moderation of two marks in each paper to every
B
candidate of the 1984, Delhi Judicial Service be
done". Moderation has been done on several occasions
in the past also. Accordingly, a second list was also
· prepared by the High Court and was put on the notice
board for information of all the candidates. The said
two lists of candidates who qualified at the written
. test, both before and after the moderation/revalua-
c tion, are annexed hereto and marked as 'annexure 'B'
and 'C', respectively. A list of the candidates who
had otherwise scored good marks in individual papers
but could not secure 60% in the aggregate is annexed
. hereto and marked as Ailnexure 'D' . There was yet
another candidate, namely, Shri Raj Kamal Gaur who had
scored very good marks in all the law papers viz. in
D
Criminal Law 178 out of 200; in Civil Law (I) 144 out
of 200 , in Civil Law (II) 133 out of 200 and in
language 50 out of 100 but secured 73 marks out of 150
in the Essay and General Knowledge paper and thus
. disqualified himself for lack of only 2 marks in the
r .. Essay and General Knowledge paper. This case was also
taken into consideration by the Full Court for decid-
ing to grant two additional marks to each candidate in
each subject. This candidate if had only secured 75%
-marks out of 150 in Essay and General Knowledge paper
would have obtained No.2 position in the merit list
even without the addition of two marks in other papers
F which were subsequently awarded to him as well as to
1-- others by reasons of the Full Court decision. Shri
Raj Kumar Gaur is an advocate practising at Bhiwani
(Haryana) and the other candidates mentioned in'
1 annexure 'D' above are neither related nor in any way
. connected with the staff of the High Court or the
G , Judges of the High Court • "

In the counter-affidavit filed in Writ Petition No. 4363 of
1985 in paragraph 7 the Deputy Registrar stated:-

"In reply to para 7 of the writ petition it is
H admitted to be correct that it is provided in Rule 18
u.c.SHUKLA' V• u.0.1. [VENKATARAMil\11, J.] 377

that the Selection Committee shall prepare a iist of
A
candidates in order of merit, and that such list may
be forwarded to the Administrator for filing the
vacancies then existing or any vacancy that may occur
within a period of one year of the preparation of the
list. It is submitted that if this rule iS interpre-
ted to mean that the Selection Committee shall even i f
B
it considers in the Viva voce test - a candidate to be
not suitable for appointment to the Delhi Judicial
Service then too "it shall recommend his name for
appointment to the Service it will render the purpose
of viva voce test to be farce and mere empty formal-
ity. In the viva voce test the Seiectiort Committee
has to judge the suitability of the candidates for c
appointment to the Service from various aspects. The
process of selection of suitable candidates to any
responsible post involves by itself a minimum standard
to be crossed by candidates and that has to be
subjectively determined by the Selection Committee
D
itself. This requirement is all the more important in
recruitment to subordinate judiciary. It is submitted
that in the present case the Selection Committee has
considered only those general candidates, who have
secured 600 or more marks in aggregate, and only the
first two Scheduled Castes" candidates to be suitable
for appointment to the Delhi Judicial Service. The
Selection Cormnittee in its recommendations dated E
1.2.1985 observed that it selects aD:d recom.eiids _for
appointment only 21 candidates to the service. A copy
of the complete list together with a copy of the order
passed by Selection Committee in this behalf is en-
closed for perusal and marked as An.nexure E-1."
F
The final select list prepared by the Selection Committee is
annexed to the counter-affidavit filed in Writ Petition 4365 of
1985. It "Contains the following names which are arranged in the
order of merit:-

"s1. Name G
No.

1. Miss Sangita Dhingra
2. Sh. Dimpy Kumar Malhotra
3. Ms. Anu Prem Shanker
4. Smt. R. Kiran Nath H
378 SUPREME COURT REPORTS [1985] SUPP;2 s.c.R.

5. Ms. Ravinder Kaur
A
6. Sh. Kamlesh Chandra Agarwal
7. Sh. Rajan Sharma
8. Sh. Satish Km. Manocha
9. Sh. Narender Paul Kaushik
10. Sh. Raj Kamal Gaur
B
11. Ms. Asha Menon
12. Sh. Pa.wan Kumar
13. Sh, Ptadeep Chaddah
14. Sh. Na.tender Kumar
15. Sh. Naresh Kumar Kaushik
16. Sh. Padam Kant Saxena
17. Sh. Brijesh Sethi
18. Miss Rekha Rani
c 19. Miss Pimam Jai
. 20. Sh. A.K. Chaturvedi
21. Sh. Sudip Ahluwalia
22. Sh. Dilbag Singh
23. Sh. Kamlesh Kumar
24. Sh. V.K. Maheshwari
.o 25. Sh. Rakesh Garg
26. Sh. J.S. Malik
27. Sh. Raj Kumar Jain
28. Sh. Suman Kr. Khanna
29. Sh. Rajl.nder Kumar Grover
30. Sh. Vijay Kumar
E
Scheduled Caste Candidates:-

1. Sh. Sukhdev Singh
2, Sh, Teeka Ram
3, Sh. Kunda Singh Mohi
4. Sh. Gian Chand
F
5. Sh. Suraj Bhan"

It is seen from the extract of the counter-affidavit filed
in Writ Petition No. 3805 of 1985 that the results at the written
examination were placed before the Full Court Meeting of the
Delhi High Court for its approval on January 25, 1985. The true
G
copy of the minutes of the Full Court Meeting held on January 25,
1985 is produced before us. It reads:

Minutes

To consider the The Full Court considered the ques-
H
question whether tion and decided as follows:-
u;c.sHUKLA v. u.0.1. [VENKATARAMIAH, J.] 379

High Court has (i) Re-checking is always possible. A
the power to re-
check and revalue (ii)· If there is to be revaluation,
the answer book of it,lllUst be by the same examiner.
an examinee of the
Delhi Judicial (iii) Revaluation may be ordered by
service. the Hon' ble the Chief Justice B
where he thinks it is a deserving
case for sufficient reasons.

(iv) MOderation of 2 marks in each
paper to every candidate of the
1984 Delhi Judicial Service c
Examination be done."

It is seen from the above minutes that the subject for
consideration at the meeting was whether the "High Court has the
' power to recheck and revalue the answer book of an examinee of
the Delhi Judicial Service." It may be stated here that one of D
the candidates had submitted a petition to the High Court
requesting it to get some of his answer books revalued before the
above Full C0urt Meeting was held. Resolutions' (i) to (il.i)
passed at the Full Court Meeting relate to the said petition for
revaluation. We are not concerned in these cases with the
question whether the High Court has the power to get the answer
books revalued since the case of the candidate who had prayed for E
revaluation of his answer books has already been disposed of by a
separate order on July 26, 1985 made in Writ Petition No. 3805 of
1985 by which he was permitted to withdraw from the contest.' We
are concerned, therefore, only with Resolution No. (iv) passed.at
the Full Court Meeting deciding to add two marks to the marks
obtained by a candidate in each paper. On this question the F
Deputy Registrar has stated in the course of his counter-
af f idavit thus:-

"The Full Court approved the initial list of 27 candi-
dates who qualified at the said written test. How-
ever, the Hon 'ble Judges of the High Court having G
appreciated that a few candidates who had otherwise
scored very high marks would have to be kept out of
the zone of consideration for final selection by
reason of their having secured one or two marks below
the aggregate or the qualifying marks prescribed for
the particular paper, decided that moderation of two
380 SUPREME COURT REPORTS [1985J SUPP.2 s.c.R.

A
marks in each paper to every candidate of the 1984
Delhi Judicial Service be done. Moderation·has been
done on s~veral occasions in the past also."

The question for consideration is whether the High Court in
the circumstances of this case had the power to add two marks to
B
the marks obtained in each paper by way of moderation. It is no
doubt, true that the High Court is entrusted with the duty of
conducting the competitive examination under rule 13 of the
Rules. It is argued on behalf of the High Court that the power
to conduct an examination includes the power to add marks either
by way of moderation or by way of grace marks if it feels that it
is necessary to do so, and reliance is placed by the High Court
c on its own past practice, and the· practice prevailing in a number
of universities in India, where marks are awarded either as
·moderation marks or as grace ·marks. It is true that in some
educationa.l institutions marks are awarded by way of moderation
at an examination if the examining body finds any defect in the
examination conducted by it such as inclusion of questions in the
question papers which are outside the syllabus, extremely stiff
D valuation of the answer books by an examiner or any other reason
relevant to the question papers or the valuation of the answer
books. The reason given by the High Court for adding the modera-
tion marks has nothing to do either .with the question papers or
with the mode of valuation. The High Court approved the list of
27 candidates who had secured the required qualifying marks which
E would enable them to appeared at the viva voce test as prescribed
in the Appendix. Thereafter the High Court resolved to add two
marks to be marks obtained in each paper by way of moderation on
the ground that a few candidates who had otherwise secured very
high marks may have to be kept out of the zone of consideration
for final selection by reason of their having secured one or two
F
marks below the aggregate or the qualifying marks prescribed in
the particular paper. 'lbe resolution does not show the names of
the particular candidates considered at the meeting in whose case
such a concession had to be shown. The affidavit filed on behalf
of the High Court, of course, refers to certain hard cases which
persuaded the High Court to add additional marks by way of
G
moderation. The question for decision is whether su~h a resolu-
tion can be passed by the High Court which is entrusted with the
duty of conducting the examination. The High Court had not found
. any defect in the question papers or any irregularities in the
valuation· of• the answer books. It may be that some candidates
had obtained high marks in some papers and by reason of their not
H
obtaining the required marks in the other papers or 60% and above
u.c.sHUKLA v. u.o.I. (VENKATARAMIAH, J.J 381

in the aggregate they may not have become qualified for the viva A
voce test. In our opinion this alone would not be sufficient to
add any marks by way of moderation. It is relevant to note the
mandatory character of clause (6) in the Appendix to the Rules
which says only such candidates will be called for viva voce who
have obtained 50% marks J.n each written paper and 60% in the
aggregate except in the case of candidates belonging to the B
Scheduled Castes/Tribes in whose case the qualifying marks will
be 40% in each written paper and 50% in the aggregate. Addition
of any marks by way of moderation to the marks obtained in· any
written paper or to the aggregate of the marks in order to make a
candidate eligible to appear in the viva voce test would indirec-
tly amount to an amendment of clause (6) of the Appendix. .Such c
amendment to the Rules can be made under Article 234 only by the
Lt. Governor (Administrator) after consulting the High Court in
that regard •. In the instant case by resolving to add two marks
to the marks obtained in each answer book by a candidate has
virtually amended the Rules by substituting 48% in the place of
50% which is required to be secured in each written paper and 58% D
in the place of 60% which is required to be secured in the aggre-
gate in the case of candidates not belonging to Scheduled Caste/
Tribes and 38% in the place of 40% in each written paper and 48%
in the place of 50% in the aggregate in the case of candidate
belonging to Scheduled Castes/Tribes. The adverse effect of the
moderation on the candidateS whO had secured the required quali-
fying marks at the examination in question is quite obvious, E
since four candidates whose names were not· in the list of 27
candidates published on the first occasion have been included in
the first list of candidates chosen for appointment from out uf
the final list of successful candidates in preference to some of
the candidates who had obtained the qualifying marks in the
written papers and they would have been appointed as Sub-Judges F
but for the interim order made by this Court. These four candi-
dates were able to get in to the" list of persons· to be appointed
as Sub-Judges because of the high marks they were able to secure
at the viva voce test for which they were not eligible but for
the moderation marks. 1he area of competition which the 27
candidates who had been declared as candidates eligible to appear G
at the viva voce examiruition before such moderation had to face
became enlarged as they had to ·complete also against those who
had not been so qualified according to the Rules. The candidates
who appear at the examination under the Delhi Judicial Service
Hules acquire a right imnediately after their names are included
in the list prepared under rule 16 of the Rules which limits the H
scope of .competition and that right cannnot be defeated by
382 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

enlarging the said list by inclusion of certain other candidates
A who were otherwise ineligible, by adding extra marks by way of
moderation. In a competitive examination of this nature the
aggregate of the marks obtained in the written papers and at the
vivl' voce test should be the basis for selection. On reading
rule 16 of the Rules which merely lays down that after the
written test the High Court shall arrange the names in order of
II merit and these names shall be sent to the Selection Committee,
we are of the view that the High Court has no power to include
the names of candidates who had not initially secured the minimum
qualifying.marks by resorting to the devise of moderation, parti-
cularly when there was no complaint either about the question
papers or about the mode of valuation. Exercise of such power of
·moderation is likely to create a feeling of distrust in the
c process of selection to public appointments which is intended to
be fair and impartial. It may also result in the violation of
the principle of equality and may lead to arbitrariness. The
cases pointed out by the High Court are no doubt hard casea, but
hard cases cannot be allowed to make bad law. In the circumstan-
ces, we lean in favour of a strict construction of the Rules and
hold that the High Court had no such power under the Rules. We
ll are of the opinion that the list prepared by the High Court after
adding the moderation marks is liable to be struck down. The
first contention urged on behalf of the petitioner has, there-
fore, to be upheld. We, however, make it clear that the error
committed by the High Court in this case following its past
practice is a bona fide. one and is not prompted by any sinister
E consideration.

With regard to the second contention, namely, that the High
Court had no power to eliminate the names of candidates who had
secured less than 600 marks in the aggregate after the viva voce
test, reference has to be made to Rules 17 and 18 of the Rules
F which provide that the Selection Committee shall call for viva
voce test only such candidates who are qualified at the written
test as provided in the Appendix and that the Selection Comnittee
shall prepare the list of .candidates in order of merit after the
viva voce test. There is no power reserved under rule 18 of the
Rules for the High Court to fix its own minimum marks in order to
G include candidates in the final list. It is stated in paragraph
7 of the counter-affidavit filed in Writ Petition No. 43b3 of
19!!5 that the Selection Committee has inherent power to select
candidates who according to it are suitable for appoointment by
prescribing the minimum marks which a candidate should obtain in
the aggregate in order to get into the llelhi Judicial Service.
H
u.c.sHUKLA v. u.o.r. [VENKATARAMIAH, J.J 383

It is . not necessary to consider in this case whether any other
reason such as character, antecedents, physic.al fitness which A
may disqualify a candidate from being appointed to the Delhi
Judicial Service may be taken into consideration by the Selection
Committee while preparing the final list. But on going through
the Rules, we are of the view that no fresh disqualification or
bar may be created by the High Court or the Selection Committee
merely on the basis of the marks obtained at the examination B
because clause (6) of the Appendix itself has laid down the
minimum marks which a candidate should obtain in the written
papers or in the aggregate in order to qualify himself to become
a member of the Judicial Service. The prescription of the
minlnrum of 600 marks in the aggregate by the Selection Committee.
as an additional requirement which the candidate has to satisfy C
amounts to an amendment of what is prescribed by clause (6) of
the Appendix. The question whether a candidate included in the
final list prepared and forwarded by the Selection Commitee may
be appointed or not is a matter to be considered by the appoint-
ing authority. In the instant case the decision that a candidate
should have secured a minimum of 600 marks in the aggregate in D
order to be included in the final select list is not even taken
by the High Court but by the Selection Committee. Moreover
recruitment of persons 0th.er than District Judges to the
Judicial Service is required to be made under Article 234 of the
Constitution in accordance wlth the Rules made by the Governor as
provided therein, in consultation with the High Court. Article
235 which vests in the High Court the control over the District E
Courts and Courts subordinate' thereto, cannot include the power
of making rules with regard to recruitment of perso.n other than
District Judges to the judicial service as it has been expressly
dealt with in Article 234 of the Constitution. We are of the
view ttiat the Selection. Committee has no power to prescribe the
minimum marks which a candidate should obtain in the aggregate F
different from the minimum already prescribed by the Rules in its
Appendix. We are, therefore, of the view that the exclusion of
the names of certain candidates, who had not secured 600 marks in
the aggregate including.marks obtained at the viva voce test from
the list prepared under rule 18 of the Rules is not legal. We,
therefore, quash the list prepared by the Selection Committee and G
direct that a fresh list shall be prepared in order of merit on
the basis of the aggregate of the marks obtained by the candi -
dates at the written examination and at the viva voce t~st with-
out taking into consideration the moderation marks added by the
High Court and without reference to the decision of the Selection
Committee that candidates who had obtained less than 600 marks in H
384 SUPREME COURT REPORTS [1985] SUPP.2 S.C.R.

the aggregate should not be included in that list. It follows
A
that the said list should contain only the names of the 27 candi-
dates who had secured the minimum marks prescribed by th·•
Appendix to the Rules for appearing at the viva voce test. Thi?
appointing authorities directed to treat the final list so
prepared as the list forwarded to it under rule 18 of the Rules.
B
On the basis of the said list appointments will now have to be
made in accordance with law and relevant Government orders
providing for reservation of posts to candidates belonging to
.Scheduled Castes/ Scheduled Tribes and other backward classes.
If in accordance with the interim order made by this Court any
c candidate has been appointed as a member of the Delhi Judicial
Service his continuance in the service or his seniority shall be
governed by the list to be prepared in accordance with the
directions issued above. These petitions are accordingly
allowed. There shall be no order as to costs.
D

N.v.K. Petitions allowed.